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Saturday, December 19, 2009

Hear Justice Dinarakan out

This blog has closely followed the journey of Justice Dinakaran from probable elevation to possible impeachment.Regardless of his guilt or innocence, how fair has the system been to him ? In today's The Indian Express, I have written an opinion piece arguing that Justice Dinakaran has been denied the procedural right to be heard, and this denial is the result of the higher judiciary's own choice to be insulated from scrutiny. That insulation, I argue, cuts both ways.

9 comments:

I see your point about the lack of a proper forum for Dinakaran to defend himself. But assuming he has a valid defense, is there anything that has prevented him from publicly issuing a memorandum backed by supporting documentation rebutting the main allegations in detail? Surely, the media would report it if he were to do so. His laconic replies to the press have not helped his case.

I enjoyed reading your piece. In the instant case, your general point about the US is well taken, that the system provides for judges to be scrutinized in public before being elevated to the SC. However we should acknowledge that the US system of Senate hearings on SC nominations is not as impressive as you make it out to be. In fact recent hearings confirm that it is a complete farce. For an excellent article discussing this, in light of Justice Sotomayor's hearings, see: http://www.nybooks.com/articles/23052 (Ronald Dworkin, Justice Sotomayor: The Unjust Hearings, New York Review of Books) (this article is available for free access).

Dear Sir,I red the Opinion Piece with interest. But the whole argument of "denial of procedural right to be heard" to Justice Dinakaran, misses the point as to when or at what stage the question arises? The Judges (Inquairy Act) 1968 takes care of this requirement well and fully. therefore, i think this OPINION has little legal value, though, may be a valid arguement against media trial. n obviously, nither it follows that such denial results from judiciary's choice of insulation from outside scrutiny.

Whether or not the charges are proven to be true in a court of law, the damage has already been done.

This is no instance of an aggreived litigant hurling vague charges at the judge. The accusations against Dinakaran are detailed and specific and one would think that his response to it, in any forum and any manner, should have been detailed and specific. However, all we have gotten is a bland "I didn't do it" defence being repeated ad nauseum while continuing to take up judicial work.

Court gossip aside, people do not make public charges against sitting judicial authorities lightly and when it is done, it is a clear recognition that something is fatally wrong somewhere and such a judge must recuse herself from all judicial work till she has dispelled all doubts.

Till today what we have heard is that Justice Dinakaran is involved in Land Grabbing case. Till the public at large are not told the specific charges and also whether they have been investigated or not the Justice Dinakaran episode will become murkier. The recent news about Dalit MP coming to the support of Justice Dinakaran and Mayawati letter to the Prime Minister is an indicator how complex this issue is going to become in the time to come.

What is needed that the Charges against Justice Dinakaran be brought out in public domain and Justice Dinakaran need to be provided a chance to put forward his defense. This is more important as in public he has denied all the allegations.

Till that does not happen all types of allegations and counter allegations will continue and the cause of Judicial Accountability will suffer.

In my view Vinay Sitapati article in The Indian Express – “Hear Him Out“ has come in at the right time.

In this case Justice Dinakarn had enough opportunities to defend himself before the collegium.There was no ex-parte decision. The report by the district collector was there. The media went there and wrote about it.Any of his family members could have sued the lawyers and media for defamation if there was no basis in the complaints.The allegatons against him are severe and enroachment is just one of them.Had there been no vigilant lawyers and mediawe would not have known all this.If there was an attempt to promote him using the lack of transparency in the process it backfired. Vinay is perhaps writing as devils advocate in this instance.The issues with the selection of judges have to discussed in a wider context.Justice Dinakaran's case points out some problems with that.But let us not over-interpret it and we have to go beyond individual cases to argue for a reform.In other words it is not a question of fixing some bugs here and there but to think of alternatives.

Vinay, it is important to distinguish his right to be heard at different stages. In the impeachment process itself, he will be heard (if the process reaches the stage of the hearing in parliament in the first place). You seem to be focusing on the process before the formal impeachment procedure begins. In this stage, there is no statutory process (and that is the point people working on judicial accountability are making). Who should hear him at this stage and why? Certainly not the people making the accusation! There is certainly a need for an independent body. Given the absence of such a body, the argument that he is not being heard does not, in my view, is on thin ground. Let Dinakaran come out and state his case rather than making vague statements. Nobody has prevented him from doing so.

I agree that the formal impeachment process is only just beginning, and as I mentioned in my article, that process does hear him out. But already, a full four institutions have judged him (district collector, law ministry, Rajya Sabha MPs, collegium). With the possible exception of the collegium (‘possible’ because we don’t know for sure), the others judged him ‘ex parte’. This may not violate any law/protocol, but isn’t it against the ‘spirit’ of natural justice.

Justice Dinakaran is of course free to issue lengthy press statements. But then so is every single litigant who complains of a legal process that doesn't hear him out. This ‘public option’ (not to be confused with the lingo of the US health care debate) is quite different from the right to be heard by the institution which judges you (the four I have mentioned).

I must reiterate the larger point my article makes: that Justice Dinakaran’s travails is the flip side of judicial aloofness; it is the consequence of a judicial selection (and dismissal) mechanism designed to protect the judge at all costs, even if it ends up boxing him in.

@tamil"Justice Dinakarn had enough opportunities to defend himself"..exactly.. the only thing that he kept saying from the past 3 months was- "i am innocent, i will be acquitted of all charges"..

it was wrong on the media's part to exploit the situation n start media trial.. even if hes not a corrupt judge, the damage has already been done..many lawyers transferred their case to different judges in the Kar HC...

And u do find many small time judges corrupt in the judiciary, there are a lot of biased judgments in the high courts,i dunno how many here wuld agree with that... im not accusing any judge but this is the truth....(I am for the American Realist School, judges are influenced by a lot of things)

People have lost faith in the judiciary and this worsens the situation.

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